Ezekial v. Winkley

*280MOSK, J.

I dissent.

I fear my learned colleagues in the majority are extending the amorphous common law right to “fair procedure” far beyond any previous contemplation. In so doing they create a cumbersome burden on employer-employee contractual relations, substitute judicial rather than professional determination of professional qualifications, and potentially affect the ability of medical institutions to provide the type of care they desire for their own patients.

In his third amended complaint, the plaintiff alleged three causes of action. In the first he sought injunctive relief; in the second, damages for breach of contract in the amount of $1.6 million; in the third, damages for intentional infliction of emotional distress in the amount of $2.5 million plus an additional $2.5 million for punitive damages. On this appeal we are concerned primarily with the prayer for injunctive relief “pending a specification of charges and the opportunity to respond to charges through a hearing.”

I

The majority accurately trace the origins of the common law right of fair procedure to James v. Marinship Corp. (1944) 25 Cal.2d 721 [155 P.2d 329, 160 A.L.R. 900]. But Marinship was based on circumstances in which a labor union had “attained a monopoly of the supply of labor” (id., p. 731). When the alleged facts indicate monopoly control of services, Chief Justice Gibson declared in quoting. from Wilson v. Newspaper and Mail Deliverers’ Union (1938) 123 N.J.Eq. 347 [197 A. 720], “the holders of the monopoly must not exercise their power in an arbitrary, unreasonable manner so as to bring injury to others. The nature of the monopoly determines the nature of the duty. Everyone must be left free to pursue his lawful calling; that is fundamental. .. the union must either surrender its monopoly or else admit to membership all qualified persons” (id., p. 732).

The reason for applying a common law doctrine to situations involving the equivalent of a restraint of trade was explicated by Chief Justice Gibson in Willis v. Santa Ana etc. Hospital Assn. (1962) 58 Cal.2d 806 [26 Cal.Rptr. 640, 376 P.2d 568]. An osteopath excluded from the staffs of hospitals in his community sought damages under the Cartwright Act. This court held “the act was not intended to apply to the professions” but that nevertheless a common law action would lie when there was “a *281conspiracy designed to restrain competition and deprive [plaintiff] of his practice in order to benefit competing members of the conspiracy” (id,

p. 810).

Forgoing repetitious analysis of cited cases, I can safely assert that in eveiy authority relied upon by the majority there was an element of monopoly control of the professional practice involved. As recently as last year, Justice Tobriner emphasized for a unanimous court in Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 486 [131 Cal.Rptr. 90, 551 P.2d410]: “Our past decisions demonstrate that this court has been adamant in its endeavor to eradicate monopolistic control of professional opportunities.”

There is no monopoly of access to a profession or a conspiracy by competitors in this case. To the contrary, plaintiff alleges that defendants’ residency program “is unique . . . unlike most private hospitals.” The plaintiff has not been denied the right to practice medicine, nor has he been barred by competitors from access to the patients and facilities of the community. He has been thwarted in his subjective expectations of completing his residency in surgery at the hospital controlled by defendants. While he alleges he will be unable to obtain a surgery residency at any other accredited hospital in California, he does not describe how these defendants control or influence residency programs at any other institution.

Plaintiff’s expectations were based on an alleged oral contract. If he can establish a contract and a breach thereof he may recover damages. But what the plaintiff seeks in actuality is specific performance of an employment contract. His hurdle is the statute which unequivocally prohibits specific performance of an agreement to render personal service or to employ another in personal service (Civ. Code, § 3390; also see Civ. Code, § 3423, subd. Fifth, and Code Civ. Proc., § 526).

To avoid the statutory bar, the plaintiff then seeks to bootstrap an alleged breach of an employment contract into an equitable proceeding, by adding claims of irreparable injury. Undoubtedly there are untoward detrital effects after every employment dismissal. But I doubt that the majority realize, in attempting to ameliorate that result by approving plaintiff’s theory, they are establishing precedent for requiring employers to provide a “fair hearing” to every employee who alleges a subjective expectancy of continued employment and injury for having *282that expectancy thwarted. The burden on the normal employer-employee contractual relationship will become intolerable.

II

There will also be an added burden on the judicial process. Not only will innumerable breach of employment contract suits be transformed into equitable proceedings calling for special remedies, but there will inevitably be constant court challenges to the nature of the “fair hearing.” The majority carefully sidestep the task of outlining the parameters of such a proceeding; with commendable candor they “recognize the practical limitations on the ability of private institutions to provide for the full airing of disputed factual issues.” I can sympathetically understand their avoidance of defining the near indefinable. What is one person’s fair hearing is another’s inquisition.

In determining the right to a fair hearing, we must bear in mind the distinction in status. This plaintiff is not a physician seeking staff privileges in order to practice his profession as in Ascherman v. Saint Francis Memorial Hosp. (1975) 45 Cal.App.3d 507 [119 Cal.Rptr. 507], and Ascherman v. San Francisco Medical Society (1974) 39 Cal.App.3d 623 [114 Cal.Rptr. 681], Plaintiff has been serving and seeks an injunction to continue serving as a medical resident. A resident is a physician who is receiving postgraduate training in a medical specialty by treating the sick and afflicted in a hospital, for which he is compensated not by the patients but by the hospital (see Bus. & Prof. Code, § 2147.5). Thus a resident is a categorical hybrid, being both an employee (Martin v. Roosevelt Hospital (2d Cir. 1970) 426 F.2d 155) and a student (Regents of Univ. of Mich. v. Michigan Emp. Rel. Com’n (1972) 38 Mich.App. 55 [195 N.W.2d 875]).

A staff physician, or his equivalent in other professions, cannot arbitrarily be denied the right to practice his profession (Ascherman v. San Francisco Medical Society, supra, 39 Cal.App.3d at p. 631) and he is entitled to a hearing before dismissal. When he loses staff privileges, a physician is unable to service his own patients and thus his ability to practice is undermined. A medical resident, on the other hand, is analogous to an employee whose tenure is terminable at will; as provided in Labor Code section 2922, “An employment, having no specified term, may be terminated at the will of either party on notice to the other.” (Wilson v. Red Bluff Daily News (1965) 237 Cal.App.2d 87, 90 *283[46 Cal.Rptr. 591]; Marin v. Jacuzzi (1964) 224 Cal.App.2d 549, 553 [36 Cal.Rptr. 880].)

This plaintiff would clearly be a mere terminable-at-will employee but for his allegations of an orally promised three-year term and his acts in reliance thereon, i.e., selling his home and closing his private practice. These allegations appear to be sufficient as a matter of pleading to raise an estoppel against a statute of frauds defense to the breach of contract cause of action. But by the same token the declarations establish the fact that plaintiff was merely a medical resident undergoing postgraduate . training and thus ■ not entitled, under any existing authority, to the common law hearing procedures associated with a staff physician position.

To extend the right of a hearing to a trainee will mean, in the final analysis, that ultimate authority will be transferred from hospitals to courts. It seems clear to me that the competency of a medical resident can best be determined by the hospital chief of staff who supervises his training, rather than by judges. Yet the task will be cast upon the judiciary when it reviews, as it inevitably will be called upon to do, the procedures and results of a fair hearing.

Ill

When we are importuned to judicially expand a common law concept we cannot overlook policy considerations and the practical repercussions.

A staff physician treats his patients at the hospital. He has full authority to prescribe the patients’ treatment, he is subject to no supervision during the course of treatment, and he generally bears full responsibility for negligence. The situation of the medical resident is entirely different. He treats his employer’s patients, by assignment of his employer, subject to supervision by the hospital’s chief of surgery, and because of the employer-employee relationship the hospital is liable for his negligence under accepted principles of respondeat superior. ( Ybarra v. Spangard (1944) 25 Cal.2d 486 [154 P.2d 687, 162 A.L.R. 1258].)

In terms of the patient’s frame of reference, when he engages a physician to treat an ailment he relies upon his doctor’s expertise, not that of the hospital. When a patient enters a hospital on his own initiative for treatment, in an emergency or otherwise, he must rely upon the institution for assignment of one of its residents. If the resident is *284competent, the hospital has chosen well; if the resident lacks training or skill, the hospital is held accountable.

These considerations underscore the importance to the hospital of maintaining control over the training and assignment of its medical residents. When a medical doctor is undergoing his residency, he understands it is a period of training out of which he may have a subjective expectation of qualifying in the future as a skilled expert in surgery or a related discipline. But to the chief of staff of the hospital this same period involves the welfare and reputation of the hospital. He must be able to select and retain only those residents who in his expert opinion will best serve the interests of the hospital and its patients. To impose upon hospital authorities the necessity of justifying in an adversary hearing these discretionary employment and instructional decisions appears to be an unreasonable burden on an institution which has as its primary function the alleviation of sickness and suffering.

I would affirm the judgment of dismissal after denial of the injunction, but would allow the matter to go to trial on the breach of contract causes of action.

Manuel, J., concurred.